Citation Nr: 0501842
Decision Date: 01/26/05 Archive Date: 02/07/05
DOCKET NO. 03-20 781 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to service connection for bilateral hearing loss
disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
Panayotis Lambrakopoulos, Counsel
INTRODUCTION
The veteran served on active duty from May 1966 to March
1968.
This appeal arises before the Board of Veterans' Appeals
(Board) from an December 2002 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, South Carolina, that denied a claim for
service connection for bilateral hearing loss. In June 2004,
the veteran testified at a hearing before a traveling section
of the Board at the RO. In June 2004, the veteran also
submitted additional evidence, and he waived consideration of
that evidence by the RO in the first instance.
FINDINGS OF FACT
1. All of the requisite notices, as well as assistance, owed
to the veteran have been substantially provided, and all of
the evidence necessary for an equitable disposition of the
claim has been obtained.
2. The veteran's current bilateral hearing loss disability
was first manifested many years after service, and it has
been related to significant post-service noise exposure, not
to his active service or to any incident therein (such as
noise exposure)
CONCLUSION OF LAW
Bilateral hearing loss disability was not incurred in or
aggravated during the veteran's active service. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303,
3.304, 3.307, 3.309, 3.385 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual background
The veteran served on active duty in the U.S. Army from May
1966 to March 1968. Service personnel records indicate that
he was a radio relay operator.
On his January 1968 medical history report, just prior to
separation, he denied having hearing loss or running ears.
On the accompanying physical examination report, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
-10
-10
-10
-
-5
LEFT
0
-10
-10
-
5
VA medical records have been obtained. In October 2002, the
veteran complained of ringing in his ears. During a December
2002 VA consultation, the veteran reported having very bad
hearing and frequent infections of his ears. There was a
history of noise exposure and ear infections two to three
times per year.
On VA outpatient treatment in March 2003 at the ear, nose,
and throat clinic for progressive hearing loss and left ear
drainage, it was noted that the veteran had significant noise
exposure as a shrimp boat captain and a diesel mechanic,
without benefit of any hearing protection. The examiner
noted some mild sensorineural hearing loss in his 1960s naval
records. The veteran's left ear drainage was otitis externa
that was probably due to a bobby pin that he kept handy to
clean his ears. The impressions were chronic otitis externa
from manipulation and sensorineural hearing loss that was
probably noise-induced.
On a VA-contracted examination in September 2003, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
35/25
40/35
40/40
60/60
55/55
LEFT
40/30
45/40
55/55
65/60
85/80
The average was 48 on the right and 62 on the left. The
diagnosis was moderate to severe sensorineural hearing loss
bilaterally, with a secondary diagnosis of subjective
bilateral mild constant tinnitus. The examiner also opined
that it is was not likely that the veteran's hearing loss or
tinnitus were due to military experience; the examiner stated
that that rationale for this conclusion was that the veteran
had been a commercial fisherman for 45 years and had not used
hearing protection.
In June 2004, the veteran testified before the Board at a
hearing held at the RO that his military occupational
specialty had been a radio relay carrier; in his duties, he
would wear headphones and he described exposure to a low
volume hum from machines; he reported ringing in his ears all
the time because of the humming noises. He stated that his
ears would always become infected ever since service. Also,
he first noticed hearing problems about three years after
separation from service. He described recent VA treatment.
He also indicated that he had worked both before and after
service as a commercial fisherman, but that engine noise on
board the fishing vessels was "no louder than an ordinary
car." His wife also testified that the veteran's hearing
has been getting worse since 1971 and 1972.
II. Analysis
A. Veterans Claims Assistance Act of 2000
First, the Board must consider whether the VA has complied
with all extant laws and regulations governing the duty to
notify and to assist a claimant.
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), codified at 38 U.S.C.A. §§ 5103 & 5107 (West
2002), was signed into law. This enhanced the notification
and assistance duties of the VA to claimants. Recently, in
Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of Appeals for Veterans Claims (Court) held that
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) (2004)
apply to cases pending before VA on November 9, 2000, even if
the initial agency of original jurisdiction decision was
issued before that date; and (2) that a claimant must be
given notice in accordance with 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b)(1) before an initial unfavorable
decision is issued. Section 3(a) of the VCAA (also
38 U.S.C.A. § 5103(a)) and 38 C.F.R. § 3.159(b)(1) require
that, upon receipt of a complete or substantially complete
application, the VA must notify the claimant and any
representative of any information and any medical or lay
evidence not previously provided to the VA that is necessary
to substantiate the claim; this notice requires the VA to
indicate which portion of that information and evidence is to
be provided by the claimant and which portion the VA will
attempt to obtain on the claimant's behalf.
In Pelegrini, the Court appears to have held, in part, that a
VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant 's
possession that pertains to the claim, or something to the
effect that the claimant should "give us everything you've
got pertaining to your claim(s)." The Court stated that
this new "fourth element" of the notice requirement comes
from the language of 38 C.F.R. § 3.159(b)(1).
In this case, the initial unfavorable decision was made in
December 2002, that is, after the date of the VCAA's
enactment on November 9, 2000. However, even under
Pelegrini, the notices regarding the veteran's claim informed
him of the bases for the relevant decisions, what types of
evidence would be needed, and how the evidence would be
secured. Under Pelegrini¸ there is no defect in the notice
sent to the veteran. But even if there were any such defect
in the pre-initial decision notice sent to the veteran, the
Board also concludes that any defect that may exist with
regard to the timing and content of the initial VCAA notice
to the veteran was harmless because of the extensive,
thorough, and informative notices provided to him throughout
the adjudication of this claim.
The VA's thorough notices of all matters required by the VCAA
and its regulatory progeny throughout this adjudication have
cured any defects involving notice of the provisions of the
VCAA or the timing of such notice. The RO sent the veteran
correspondence in November 2002; a statement of the case in
May 2003; and a supplemental statement of the case in October
2003. The correspondence and adjudicative documents also
discussed specific evidence and the particular legal
requirements applicable to the veteran's claim. Taken
together, these documents discussed the evidence considered
and the pertinent laws and regulations, including provisions
of the VCAA and the reasons for the RO's decision. There can
be no harm to the veteran, as the VA has made all efforts to
notify and to assist the veteran with regard to the evidence
obtained, the evidence needed, the responsibilities of the
parties in obtaining the evidence, and the more general
notice of the need for any evidence in the veteran's
possession. Thus, the VA has satisfied its "duty to
notify" the veteran.
The VA has informed the veteran of all applicable laws and
regulations, what types of evidence are needed to support his
claim, who is responsible for securing items, and the need
for any other evidence that the veteran may have in his
possession. Thus, through discussions in correspondence, the
rating decision, the statement of the case, and the
supplemental statements of the case, the VA has informed the
veteran of the evidence necessary to substantiate his claims.
He has been informed of his and the VA's respective
responsibilities for providing evidence.
All pertinent, identified medical records have been obtained.
The veteran has not identified any additional medical
evidence that would be relevant to his claim. The veteran
has also been examined in connection with his claim. Thus,
the VA has undertaken all reasonable efforts to assist the
veteran in securing all evidence and has satisfied its duty
to assist under the VCAA.
The Board finds that both the notice and duty to assist
provisions of the law are satisfied for purposes of this part
of the decision. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §
3.159.
B. Merits
Service connection may be established for disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
Service connection may be rebuttably presumed for certain
chronic diseases, including sensorineural hearing loss, which
are manifest to a compensable degree within the year after
active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R.
§§ 3.307, 3.309.
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
For VA purposes, impaired hearing is considered to be a
disability when the auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels
or greater; or when the auditory thresholds for at least
three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz
are 26 decibels or greater; or when speech recognition scores
using the Maryland CNC Test are less than 94 percent. 38
C.F.R. § 3.385.
The United States Court of Appeals for Veterans Claims has
held as follows:
[W]here the regulatory threshold requirements for
hearing disability are not met until several years
after separation from service, the record must
include evidence of exposure to disease or injury
in service that would adversely affect the
auditory system and post- service test results
meeting the criteria of 38 C.F.R. § 3.385. . . .
For example, if the record shows (a) acoustic
trauma due to significant noise exposure in
service and audiometric test results reflecting an
upward shift in tested thresholds in service,
though still not meeting the requirements for
"disability" under 38 C.F.R. § 3.385, and (b)
post-service audiometric testing produces findings
meeting the requirements of 38 C.F.R. § 3.385,
rating authorities must consider whether there is
a medically sound basis to attribute the post-
service findings to the injury in service, or
whether they are more properly attributable to
intercurrent causes.
Hensley v. Brown, 5 Vet. App. 155, 159 (1993).
In this case, despite one reference to "some mild"
sensorineural hearing loss in the veteran's medical records
in the 1960 from naval service (even though the veteran
served in the Army), his service medical records do not show
any hearing loss disability, as defined for purposes of VA
benefits. See 38 C.F.R. § 3.385.
Nevertheless, the Board must also consider whether any post-
service bilateral hearing loss is related to the veteran's
active service. The current medical evidence certainly shows
that the veteran now suffers from a bilateral hearing loss
disability that comports with the numerical requirements of
38 C.F.R. § 3.385. However, there is no competent medical
evidence that the current hearing loss disability is due to
the veteran's active service. Indeed, a 2003 VA ear, nose,
and throat clinic consultation report refers to significant
noise exposure from the veteran's occupation as shrimp boat
captain and diesel mechanic. Also, a 2003 VA-contracted
examination specifically rejected the existence of any
relationship between the veteran's current bilateral hearing
loss disability and his active service; that examiner also
pointed to the veteran's reported post-service noise
exposure.
The veteran has testified that he first noticed hearing loss
only three or so years after his active service. However,
the first corroborating evidence of such hearing loss is from
very recently, which is many, many years after separation
from active service. To the extent that the veteran ascribes
his current hearing loss to a low humming noise he was
exposed to in his duties in service, his opinion is not
probative. See Espiritu v. Derwinski, 2 Vet. App. 492, 494
(1992) (layperson is generally not competent to opine on
matter requiring knowledge of medical principles).
In sum, the weight of the credible evidence demonstrates that
the veteran's current bilateral hearing loss disability was
first manifested many years after service and is not related
to his active service or any incident therein. As the
preponderance of the evidence is against the veteran's claim
for service connection for bilateral hearing loss disability,
the "benefit of the doubt" rule is not for application, and
the claim must be denied. See 38 U.S.C.A. § 5107(b) (West
2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for bilateral hearing loss disability is
denied.
____________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs